As a recipient of federal funds, Henry Ford College (“HFC” “College”) is required to comply with Title IX of the Higher Education Amendments of 1972, 20 U.S.C. 1681 et seq (“Title IX”) which prohibits discrimination on the basis of sex in educational programs or activities. Sexual misconduct and sexual harassment, as defined in this policy and process, is a form of sexual discrimination prohibited by Title IX. In addition to sexual misconduct, Title IX also includes, but it not limited to, pregnancy/pregnancy related issues and gender equality in athletics, academic programs and activities. This policy and procedure comply with the requirement of Title IX that entities subject to the Act have a statement of policy and procedure for handling complaints of sexual misconduct. 20 U.S.C. 1092 (f)(7) and 1681 (a).

The purpose of this Policy is to define sexual misconduct and sexual harassment, describe the process for reporting violations of the policy, outline the process used to investigate and adjudicate alleged violation of policy, and identify resources available to College community members who are involved in an incident of sexual misconduct. www.hfcc.edu/incidentreport

IV. Policy Statement

The College is committed to offering programs, activities and an educational environment free from sex and gender discrimination and conducive to positive learning and working experiences free from sex and gender discrimination. The College prohibits, and will not tolerate, sexual misconduct. For the purposes of this policy, sexual misconduct includes, but is not limited to, behaviors such as rape, sexual assault, sexual battery, sexual harassment, sexual coercion, domestic violence, dating/relationship violence, sexual exploitation, and stalking. College community members shall not engage in sexual misconduct. Persons who engage in such prohibited behavior are subject to disciplinary action, up to and including discharge for employees and dismissal for students, and may be subject to criminal prosecution.

The College will respond to complaints, reports, or information about incidents of relationship violence and sexual misconduct to stop the prohibited conduct, including, but not limited to, eliminating hostile environments, taking steps to prevent the recurrence of prohibited conduct, and addressing any adverse effects on the College community.

The College will provide due process to students or employees accused of sexual misconduct. The Sexual Misconduct Complaint Procedure is designed to provide due process for both parties while also ensuring that a complainant is afforded applicable protections. This includes providing the accused with an opportunity to state his or her versions of events and to present relevant information to either the Student Title IX Coordinator, the Employee Title IX coordinator, or their designee.

If you Need Assistance:

Assistance may be obtained 24 hours a day, seven days a week, by dialing 911.

During business hours (8:00 a.m. to 4:30 p.m., Monday through Friday), you are also strongly urged to contact, whether student or employee, one of the following Title IX Coordinators as soon as reasonably possible to report any sexual misconduct you believe may have occurred.

Title IX Coordinators:

Students:

For complaints against a student, click here and contact the Student Title IX Coordinator:

Your health, safety and well-being are the College’s primary concern. If you, or someone you know, may be the victim of any form of sexual misconduct, you are strongly urged to seek immediate assistance.

Further information about Title IX and sex discrimination in education is available from the Office for Civil Rights, 400 Maryland Avenue, SW, Washington, DC 20202-1100 (by Customer Service Hotline: 800-421- 3481; fax: 202-453-6012; TDD: 877-521-2172; email: OCR@ed.gov; or on the web, at http://www.ed.gov/ocr).

Responsible Employees and Reporting Requirements

MCL 750.411h(1)(d). 10 34 CFR Part 106.8(a) requires designation of at least one “responsible employee” who ensures the recipient’s compliance for the institution. The Student Title IX Coordinator is the individual responsible for sexual misconduct issues in which a “student” is the accused party.

The Title IX Coordinator(s) oversee the College’s compliance with Title IX, including its grievance procedure, education/prevention efforts, and training. The Coordinators review information about sexual misconduct complaints to identify and address any patterns or systematic concerns that arise during the review of such complaints. The Coordinators are available to meet with any College community member or campus organization that would like to discuss Title IX compliance at the College.

Confidential or Anonymous Reporting

For confidential or anonymous reporting you must either submit an on-line anonymous report or meet with a full time licensed counselor at the HFC Counseling Center. If safety to others is a concern, or as required by law, the College may need to report the allegation.

The College is committed to fostering a community that promotes reporting of all types of sexual misconduct. All individuals are encouraged to promptly report conduct that may violate this policy to the College and report conduct that may also violate criminal law to both the College and local law enforcement.

The College can most efficiently and effectively investigate and respond to allegations of sexual misconduct if the complaint is made as promptly as possible after the alleged misconduct occurs.

Mandatory Reporters:

Creating a safe environment is the responsibility of all members of the College community. All College employees, including the College's Board of Trustees, faculty, and staff must promptly report sexual misconduct that they observe or learn about and that involves a member of the College community or occurred at a College event or on College property. The Board of Trustees, employees, faculty and staff are required to report this information even if the complainant indicates they plan to report the complaint. The Board of Trustees, employees, faulty and staff are directed to refer to the Title IX Resource Guide for guidance in their reporting obligations. See Related Documents section below for a link to the Title IX Resource Guide.

First Amendment Protections

The College is also required and committed to upholding the First Amendment of the United States Constitution. Nothing in this process is intended to abridge the rights or freedoms guaranteed by the First Amendment, or to infringe on the proper exercise of academic freedom. The protections of the First Amendment must be carefully considered in all complaints involving speech or expressive conduct. The fact that speech or a particular expression is offensive is not, on its own, necessarily a legally sufficient basis to establish a violation of this policy. For speech or expressive actions to invoke a violation of this policy, the behavior must constitute sexual harassment and sexual harassment which causes a hostile environment as defined below. Speech or expressive conduct that constitutes sexual harassment is neither legally protected nor the proper exercise of academic freedom.

Jurisdiction and Timing.

A. Personal Jurisdiction. Any person may file a complaint of sexual misconduct against a "student" or “employee” under this process. A "student" means any student who is registered or enrolled at the College at the time of the alleged sexual misconduct (including, but not limited to, sexual misconduct that is alleged to have occurred during any academic recess, provided that there is an expectation of the student's continued enrollment at the College). If a student who was currently enrolled at the time of the alleged sexual misconduct subsequently withdraws from all courses, the College shall maintain personal jurisdiction. An “employee” is defined as a current employee.

B. Geographic Jurisdiction. This process applies to any allegation of sexual misconduct against a College student or employee. Although there is no geographical limitation to invoking this process, sexual misconduct that is alleged to have occurred at a significant distance from the College may be more difficult to investigate. In addition, with respect to any complaint (a) by a person who is not a member of the College community, and (b) relating to Non-College Conduct, the College reserves the right to determine, in its sole discretion, whether the conduct described in the complaint constitutes a sufficient risk or harm to the College community to warrant processing the complaint.

C. Timing of Complaints and Availability of Procedures. So long as there is personal jurisdiction over the accused student or employee pursuant to A.1, above, there is no time limit to invoking this process in responding to complaints of alleged sexual misconduct. Nevertheless, students and HFC Community Members are encouraged to report alleged sexual misconduct immediately in order to maximize the College's ability to obtain evidence, and conduct a thorough, impartial and reliable investigation. HFC recommends taking action within 72 hours of incident as delays in reporting alleged sexual misconduct may result in the loss of relevant evidence and witness testimony, and may impair the College's ability to engage in this process. If the accused student will be graduating, the conferral of a degree may be deferred until proper resolution of any sexual misconduct charges, provided that a hearing opportunity will be scheduled for the earliest practicable date that may reasonably accommodate the parties and their witnesses.

V. Definitions

A. "Sexual Misconduct" is a broad term encompassing “Sexual Exploitation," “Sexual Harassment”, "Sexual harassment which causes a hostile environment," "Non-Consensual Sexual Contact," and "Non-Consensual Sexual Intercourse," as defined in this process. Sexual misconduct can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship, sexual misconduct can be committed by men or by women, and it can occur between people of the same or different sex.

i. "Sexual Exploitation" means taking sexual advantage of another person without effective consent, and includes, without limitation, causing or attempting to cause the incapacitation of another person in order to gain a sexual advantage over such other person; causing the prostitution of another person; recording, photographing or transmitting identifiable images of private sexual activity and/or the intimate parts (including genitalia, groin, breasts or buttocks) of another person; allowing third parties to observe private sexual acts; engaging in voyeurism; and/or knowingly and intentionally exposing another person to a significant risk of a sexually transmitted infection.

ii. “Sexual Harassment”: means unwelcome conduct, based on sex or on gender stereotypes. Gender based harassment may include, but are not limited to: unwelcome sexual advances, requests for sexual favors, stalking, dating and domestic violence. The College strongly encourages individuals to report all unwelcome conduct based on sex to the Title IX Coordinator.

In evaluating any complaint of sexual harassment, the perceived offensiveness of a particular expression, standing alone, is not sufficient by itself to be actionable. The exclusive purpose of this distinction is to protect individuals from sex or gender discrimination, consistent with both federal regulatory law and the requirements of the First Amendment to the United States Constitution.

iii. “Sexual harassment which causes a hostile environment”: means unwelcome conduct based on sex or gender (e.g., sexual orientation, gender stereotypes, sexual preference and/or pregnancy or a pregnancy-related status), which is so severe, persistent, or pervasive, that it unreasonably interferes with an individual’s College employment, academic performance or participation in College programs or activities and creates a working, learning, program or activity environment that a reasonable person would find intimidating, hostile or abusive. Types of potential harassment include, but are not limited to, stalking and bullying. The inclusion of a definition of “sexual harassment” that is separate from the definition of “sexual harassment causing a hostile environment” was adopted based on the language used in the Montana-Missoula OCR Letter:https://www.justice.gov/sites/default/files/opa/legacy/2013/05/09/um-ltr...

Examples of sexual harassment include, but are not limited to:

• Sexual violence, including sexual assault, rape and sexual exploitation
• Threats or insinuations that led the recipient reasonably to believe that granting or denying sexual favors will affect her/his reputation, education, employment, advancement, or standing at the College
• Sexual advances, sexual propositions, or sexual demands that are not agreeable to the recipient
• Unwelcome sexually explicit material presented via email, text message, or other means of communication
• sexual misconduct such as stalking, cyberstalking, recording or transmitting sexual images without an individual’s consent, and voyeurism
• Unwelcome and persistent sexually explicit statements or stories that are not legitimately related to employment duties, course content, research , or other College activities or programs
• Repeatedly using sexually degrading words or sounds to a person or to describe a person
• Unwanted and unnecessary touching, patting, hugging, or other physical contact of any body part
• Recurring comments or questions about a person’s sexual prowess, preferences, deficiencies or behavior.

Simply because a type of sexual behavior does not fall within a clear definition of sexual harassment that does not render the sexual behavior acceptable in the workplace or classroom. The behavior may be in violation of other College policies, and if disruptive or unprofessional may be subject to disciplinary action.

iv. “Sexual Violence” means a physical sexual act perpetrated without consent. This encompasses conduct such as rape and sexual assault.

a. "Effective Consent" means words or actions that show a knowing and voluntary agreement to engage in mutually agreed-upon sexual activity. Effective consent is absent when the activity in question exceeds the scope of effective consent previously given. Consent is a free and clearly given yes, not the absence of a no, and cannot be received when a person is incapacitated by alcohol or drugs. See definition of incapacitation, below.

MCL 750.520d(1)(a) states that a person is guilty of third-degree criminal sexual conduct if the person engages in sexual penetration with another person and that person is at least thirteen but younger than sixteen years old. Accordingly, a thirteen-year-old child cannot legally consent to sexual penetration with another person because sexual penetration of a thirteen-year-old child is automatically third-degree criminal sexual conduct. People v. Starks, 473 Mich 227.

d. "Rape", which is a form of sexual assault, is defined as penetration, no matter how slight, of the vagina or anus with any body part or object, oral penetration by a sex organ of another person, without the consent of the victim

e. "Sexual Assault" is defined as having or attempting to have sexual intercourse or having sexual contact with another individual by force or threat of force; without consent; or where that person is incapacitated

f. "Sexual Contact"means the deliberate touching of a person's intimate parts (including genitalia, groin, breast or buttocks, or clothing covering any of those areas), or using force to cause a person to touch his or her own or another person's intimate parts. Sexual Assault is any sexual contact without consent.

ev “Domestic Violence” is a pattern of behavior in which one person uses physical, sexual, economic or emotional abuse to control the victim. This behavior specifically includes assaults or an assault and battery of a person’s spouse or former spouse, an individual with whom he or she has or has had a dating relationship, an individual with whom he or she has had a child in common, or a resident or former resident of his or her household.

MCL 750.81(2) considers “domestic violence” a misdemeanor punishable by imprisonment for not more than 93 days or a fine of not more than $500.00, or both.

vi. “Dating Violence” means a pattern of assaultive and/or controlling behaviors that one person uses against another in order to gain or maintain power and control in the relationship. The accused student has intentionally behaved in ways that causes fear, degradation and humiliation to control the victim. Forms of abuse can be physical, sexual, emotional and/or psychological.

In determining whether an individual has engaged in “dating violence,” the following must be established: the accused student and the victim have been in a societal relationship of a romantic or intimate nature. The existence of such a relationship shall be determined based on a consideration of the following factors: 1.) length of the relationship, 2.) type of the relationship, and 3.) the frequency of interaction between the persons involved in the relationship.

vii. "Incapacitation" means the physical and/or mental inability to make informed, rational judgments. States of incapacitation include, without limitation, sleep, blackouts, and flashbacks. Where alcohol [or other drug] is involved, one does not have to be intoxicated or drunk to be considered incapacitated. Rather, incapacitation is determined by how the alcohol consumed impacts a person's decision-making capacity, awareness of consequences, and ability to make informed judgments. It is not the practice of the College to pursue disciplinary action against a complainant or witness for his or her improper use of alcohol or drugs (e.g., underage drinking), provided that such individual is acting in good faith as a complainant or witness to the events of the alleged sexual misconduct.

The question is whether the accused student knew, or a sober, reasonable person in the position of the accused student should have known, that the complainant was incapacitated. Because incapacitation may be difficult to discern, students are strongly encouraged to err on the side of caution; e.g., when in doubt, assume that another person is incapacitated and therefore unable to give effective consent. Being intoxicated or drunk is never a defense to a complaint of Sexual Misconduct under this Process.

viii. “Stalking” means a pattern of behavior made up of a series of two or more separate non-continuous acts which shares the same purpose and causes a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed or molested, and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed or molested.

B. “Duty to Report” means all College Board of Trustees,employees, faculty and staff, are identified as responsible employees, who learn of sexual misconduct or sexual harassment against a student or employee or other form of discrimination are expected to notify the Student or Employee Title IX Coordinator, including all Title IX violations as described under Section III, Purpose. If the allegation of gender-based harassment, sexual harassment or sexual assault involves a minor under the age of 17, the Board member, employee, faculty or staff is required to notify the Employee Title IX Coordinator and the Office of Campus Safety. An employee (including faculty and staff) who fails to report may be found to have violated Henry Ford College’s policies, and be subject to disciplinary actions, up to and including termination, in accordance with Collective Bargaining Agreement, if applicable. College employees whose role with the College is to serve in a privileged, professional capacity, such as licensed counselors, are not bound by this expectation except as required to law. College Employee for purposes of this Policy includes the Board of Trustees, all unionized, exempt and non-exempt Community College Members.

F. "Investigators" refers to the individuals trained and designated by the Employee or Student Title IX Coordinator to conduct investigations of alleged sexual misconduct, and to determine whether or not there is a reasonable basis to grant a hearing (as more specifically described in Section 4, below). The Student Title IX Coordinator and the Title IX hearing officers are also trained investigators and may be part of an investigative team at any time when necessary.
20 U.S.C. Section 1232g; 34 CFR Part 99. Sokolow, Brett A., Lewis, W. Scott, Schuster, Saundra K., NCHERM Institute on Responding to Campus Sexual Misconduct. 2010, p. 49.

G. “Notice” means the College considers having notice of sexual misconduct when a Responsible Employee (as defined in this document) knew, or in the exercise of reasonable care should have known, about the sexual misconduct. Notice of sexual misconduct can be reported in many different ways. Some examples of notice include: a student may have filed a grievance with or otherwise informed the school’s Title IX coordinator; another student, another HFC employee, past faculty member, supervisor, current faculty or club advisor may have witnessed the sexual misconduct.

H. "Off Campus Conduct" means conduct that occurred on any place other than on College-owned or leased property, at any College sanctioned function, at the permanent or temporary local residence of a College student, faculty member, employee, or visitor, or elsewhere in Michigan, and is reasonably related to a college function or activity.

I. "Hearing Officers Cadre" means the standing group of faculty and/or staff appointed by the College's VP of Student Affairs (or his or her designee) to specifically hear complaints of alleged sexual misconduct (Article II(B)(4) of the Student Code of Conduct).

J. “Responsible Employees” means all Board of Trustees, faculty, employees, and staff, or those perceived by a complainant as a person that would address complaint (e.g., including teaching assistants, supervisors, coaches, club advisors) are expected to report any disclosures that involve allegations of sexual harassment and gender-based misconduct. See Title IX Resource Guide.

K. "Student Code of Conduct" means HFC's Student Code of Conduct, as enforced by the Office of Student Conduct and Compliance.

L. "VP" refers to the Vice President of Student Affairs and Vice President of Human Resources (and his or her designees). The College has designated the VP’s designee as the Title IX Coordinators listed above for purposes of this process and in accordance with federal regulations.

M. "Vice President’s Office" means the Office of the Vice President of Student Affairs or the Vice President of Human Resources located in the Administration Building, currently Room numbers 430 and 424.

N. "Retaliation". It is a violation of College Policy to retaliate against any person making a complaint of sexual misconduct, any person cooperating in the investigation of (including testifying as a witness) of any allegation of sexual misconduct, and supporters of the complainant. For the purposes of this document, retaliation means when a faculty/staff member/employer takes an adverse action against a/an student/employee because she or he has engaged in a protected activity such as filing a complaint of discrimination or harassment. Retaliation may be found even when the underlying charge does not constitute discrimination or harassment in violation of College policies, and all persons who participate in a discrimination or harassment proceeding, not only the complainant, are protected against retaliation. The College will not tolerate retaliation.

A retaliatory adverse action is an action taken to deter a reasonable person from opposing a discriminatory or harassing practice, and/or from participating in a discrimination or harassment proceeding or more generally, from pursuing her/his rights. Examples of adverse actions include failing grade, termination, denial of promotion or demotion, and unjustified negative evaluations or references. Adverse actions do not include petty slights and annoyances, such as stray negative comments in an otherwise positive or neutral evaluation, snubbing a colleague, or addressing poor class/work performance. Student/Employees who have filed a complaint or expressed opposition to discrimination or harassment are still expected to perform their student/employee responsibilities and follow appropriate classroom/work decorum.

Related Misconduct; Criminal Proceedings

A. Other Related Misconduct.

In accordance with this process, the Hearing Officer Cadre is empowered to hear allegations of, and to recommend and/or impose sanctions for, sexual misconduct and any other violation(s) of the College's Student Code of Conduct directly related to the alleged sexual misconduct. Such related misconduct may include, without limitation, violations of the rules of privacy as articulated herein, violations of the Title IX Coordinator’s directive(s) discussed in the Title IX Complaint Procedures, and/or violations of other College policies that occurred in the course of the alleged sexual misconduct.

Employees, students and other College Community Members are expected to comply with the College’s Drug and Alcohol policy.

Students who appear before the Panel, whether as parties to the proceedings or as witnesses, are expected to provide truthful testimony in accordance with the College's Student Code of Conduct.

B. Effect of Criminal Proceedings.

Because sexual misconduct may constitute both a violation of College policy and criminal activity, the College encourages students to report alleged sexual misconduct promptly to local law enforcement agencies. Criminal investigations may be useful in the gathering of relevant evidence, particularly forensic evidence within 72 hours of incident. Because the standards for finding a violation of criminal law are different from the standards for finding a violation of College Policies, criminal investigations or reports are not determinative of whether sexual misconduct, for purposes of this process or applicable College Policies, has occurred. Conduct may constitute sexual misconduct under this process even if law enforcement agencies lack sufficient evidence of a crime and therefore decline to prosecute. In such cases, the complainant may not initially understand the results of the criminal investigation, the nature of criminal procedure, or the grounds for the law enforcement decision not to prosecute. The complainant in such cases may request that the Title IX Coordinator identify an advocate to assist the complainant in seeking and attending a meeting with the local prosecutor to gain an understanding of the decision to decline a prosecution.

The filing of a complaint of sexual misconduct under this process is independent of any criminal investigation or proceeding, and (except that the College's investigation may be delayed temporarily while the criminal investigators are gathering evidence) the College will not wait for the conclusion of any criminal investigation or proceedings to commence its own investigation and take interim measures to protect the complainant and the College community, if necessary, as described in the Procedures.

The Procedure for filing a Title IX sexual misconduct or sexual harassment complaint at the College shall be developed by the President and/or his or her designee in accordance with this Policy. These Procedures shall appear on the College's website.